Two Courts, Two Interpretations

Impeachment proceedings of President Dilma Rousseff have begun in Brazil, but the Brazilian National Congress will not decide alone, nor will its decision be final. The Brazilian Supreme Court (STF) recently heard a Claim of Breach of Fundamental Precept (ADPF no. 378; In re Brazilian Communist Party)—an action directed to protect important constitutional provisions—filed by the Brazilian Communist Party (PCdoB). In its decision, STF ruled 8-3 that the Senate may dismiss by a simple majority the House of Representatives’ decision of accepting charges of impeachment against President Rousseff. At a minimum, this decision affects impeachment procedures, and its greater repercussions are still unknown.

This action sought inter alia to obtain a judicial decision authorizing a senatorial review of the House’s admissibility of charges. Justice Luis Roberto Barroso, who delivered the opinion of the Court, stated that the Senate constitutional prerogative to try the President (article 52, section I of the Brazilian Federal Constitution) implies the possibility of reviewing House’s indictment. Hence, STF held that provisions of Law No. 1.079/1950 (Impeachment Proceedings Act) assigning the House of Representatives the sole power of impeachment are unconstitutional. The STF affirmed its precedent in Writ of Mandamus no. 21.564 (1992) (De Mello v.Speaker of the House of Representatives), which settled the impeachment procedure of President Fernando Collor de Mello.

However, STF apparently misinterpreted impeachment-related statutes. Item I of article 51 of Brazilian Federal Constitution (CF/1988) states that it is exclusively the competence of the Chamber of Deputies (Brazilian House) to authorize, by two-thirds of its members, legal proceeding to be initiated against the President and the Vice-President. In addition, article 86 of CF/1988 provides that if charges against the President of the Republic are accepted by two thirds of the Chamber of Deputies, he shall be submitted to trial before the Supreme Federal Court for common criminal offenses or before the Federal Senate for crimes of malversation, with the Chief Justice of the STF presiding.

Therefore, a systematic interpretation—adopted by Justice Luiz Edson Fachin in his dissent—of the aforementioned provisions hints: if the House believes that the article(s) of impeachment merit a trial, the Senate should immediately initiate trial proceedings, instead of reviewing the House’s prior decision. Justice Fachin wrote that the Senate should only read the House’s report as long as it lacks authority to reject the authorization issued by the House. The House similarly defended the impossibility of senatorial review. Ergo, STF made two major mistakes: (i) it introduced a second-opinion mechanism in impeachment legislative proceedings and, more importantly, (ii) ruled the limits of its own jurisdiction over judicial review of impeachment procedure, defying the maxim nemo judex in causa sua (“no one should be a judge in his own cause”).

Second Opinions

Mechanisms of second opinion, e.g., senatorial review of the House impeachment decision, are generally intended to improve the accuracy of decisions. Tsebelis & Money argue that knowing that someone else will examine the product makes the producer more careful initially and a second chamber, regardless of its level of expertise and wisdom, constitute . . . a quality-control mechanism. However, reviewability reduces the House importance in impeachment procedures whilst increasing the possibility that it will engage in strategic behavior. That is, because it knows that the Senate will review its decisions, the House may avoid making politically difficult decisions, opting instead to decide only minor issues.

Furthermore, analysis of second-opinion mechanisms reveal that aggregation of opinions or preferences may “amplify,” rather than correct, individual errors in judgment. Those mechanisms, according to Vermeule, have many attractions, especially from the stand point of liberal theorists: they are in some sense value-neutral, and thus promise to improve the quality of decision making without dictating substantive outcomes a priori. Nevertheless, second-opinions may create their own countervailing problems, mainly perversity problems, by which anticipation of review may induce first opinion-giver to invest too little in acquiring information, or may discourage her from using expertise she already possesses.

Nemo iudex

Brazilian and American impeachment procedures share many similarities. The current Brazilian procedure resembles impeachment proceedings prescribed by Republic of the United States of Brazil’s Constitution of 1891 (CF/1891), which was inspired by the U. S. Constitution. The CF/1891 provided that the Chamber of Deputiesshall have exclusive power to declare founded or unfounded charges against the President (article 29) and the Senate shall have exclusive power, after the Chamber of Deputies decides article(s) of impeachment merit a trial, to conduct the legal proceeding and trial of the President and Vice-President of the Republic for crime of malversation (articles 33 & 53).

Likewise, the U.S. Constitution states that the House of Representatives . . . shall have the sole Power of Impeachment (article I, §2º, cl. 5), which for Laurence Tribeis analogous to a grand jury indictment in the criminal justice system i.e. the House of Representatives decides by majority vote whether charges raised against “civil officers” are sufficiently serious, and are supported by sufficient evidence, to warrant holding a Senate trial. The Constitution also establishes that the Senate shall have the Power to try all Impeachments and when the President of the United States is tried the Chief Justice shall preside (article I, §3, cl. 6). Even though Brazilian and American legal backgrounds are distinct, impeachment procedures adopted by both are substantially identical. However, case law is irreconcilable.

The STF has already ruled it may review legislative interna corporis impeachment proceedings. See De Mello v.Speaker of the House of Representatives; In re Brazilian Communist Party. Inversely, judicial courts in United States consider impeachment-related cases non-justiciable. See Ritter v. United States, 84 Ct. Cl. 293 (1936), cert. den. 300 U.S. 668 (1937); Hastings v. US Senate, Impeachment Trial Com., 716 F. Supp. 38 (D.D.C. 1989). In Nixon v. United States 506 U.S. 224 (1993), the Supreme Court ruled that a review of the Constitutional Convention’s history and the contemporary commentary supports a reading of the constitutional language as deliberately placing the impeachment power in the Legislature, with no judicial involvement, even for the limited purpose of judicial review. This led Stephen Burbank to assert that most questions of substance arising in connection with an impeachment inquiry by the House or a trial on articles of impeachment by the Senate are not subject to judicial review.

Back to Brazil, Justice Marco Aurelio Mello long before the Senate verdict on Dilma’s trial publicly stated that the judiciary is the last trench of citizenship and the Senate decision may be challenged in order to demonstrate that there is no legal fact warranting impeachment. Justice Mello’s statement only reinforces the STF trend to regard itself as the “final word” on the meaning of the Constitution. In Direct Action of Unconstitutionality no. 3345 (In Re Progressive Party), a landmark STF decision, Justice Celso de Mello delivered the opinion of the Court—one that bears striking resemblance to the U.S. Supreme Court’s decision in Marbury—affirming that STF opinions play a very important role in national institutional system, giving grounds for STF final say on the meaning of the Constitution.

In addition, STF hardly ever invokes the political question doctrine. In Baker v. Carr, 369 U.S. 186, Justice Brennan, delivering the opinion of the Court, ruled that nonjusticiability of a political question is primarily a function of the separation of powers. The doctrine should accordingly be read broadly in Brazil on impeachment cases: nevertheless, STF ignored it in 1992 case De Mello v.Speaker of the House of Representatives, recently affirmed in ADPF no. 378 (In re Brazilian Communist Party).

Rupture

History could be different: the Brazilian and U.S. Supreme Courts both heard arguments in 1992 on impeachment-related cases, of petitioners Walter L. Nixon (Nixon v United States) and President Fernando C. de Mello (De Mello v Speaker of the House of Representatives), but followed different paths: The Supreme Court of the United States reaffirmed the political question doctrine whilst the Brazilian Supremo Tribunal Federal reaffirmed its alleged interpretive supremacy.

Justice Paulo Brossard, in a passage from his dissent in De Mello, essayed a shared case law. Before quoting Joseph Story (as did Justice White, in his concurrence in Nixon), he stated that the STF should not interfere in matters of exclusive competence of the National Congress, just as it is not up to Congress to interfere in the decisions of the STF and regarded offensive [the] interference of the judiciary on legislative matters. In any event, his dissent reserved to history the intersection point of Brazilian and American courts regarding impeachment proceedings.

Igor De Lazari is a Graduate Student at the Federal University of Rio de Janeiro, Researcher at the Theoretical and Analytical Studies on Institutional Behavior Lab and Law Clerk at the Regional Federal Court in Rio de Janeiro.

Antonio Sepulveda is Professor of Law at the Getulio Vargas Foundation (FGV) and at the Fluminense Federal University. He is a researcher at the Theoretical and Analytical Studies on Institutional Behavior Lab and a Brazilian Internal Revenue Service officer.

Carlos Bolonha is the Vice Dean and Professor of Law at the Federal University of Rio de Janeiro Law School. He is School's Research Coordinator and a Brazilian National Council of Technological and Scientific Development (CNPq) Research Fellow. He is also coordinator of the Theoretical and Analytical Studies on Institutional Behavior Lab, author of several articles in various law reviews and newspapers and founder of the Journal of Institutional Studies (Revista Estudos Institucionais).